Can derivatives settled in stablecoins—namely asset-referenced tokens or electronic money tokens as defined in Article 3(6) and (7) of Regulation (EU) 2023/1114 on markets in crypto-assets (MiCA) - be classified as financial instruments under Section C of Annex I to Directive 2014/65/EU? More specifically, can such instruments be deemed to meet the criterion of derivatives settled in cash?

In addition, does EU legislation permit the use of unauthorised stablecoins – namely asset-referenced tokens and electronic money tokens that do not comply with Titles III and IV of MiCA – for the settlement of derivatives?

It follows from Article 1(9)(b) and Article 2(4)(b) AIFMD II that the AIFM or UCITS management company shall ensure that the performance of the functions in Annex I or II of the respective directives, as well as the provision of the services referred to in Articles 6(4) or 6(3), complies with the requirements of AIFMD II. Considering that portfolio management and risk management may be delegated to entities located in the EU or to regulated entities located in third countries, to which extent are delegates or subdelegates of AIFMs or UCITS management companies subject to the AIFMD and UCITS Directive?

In cases where a distributor is acting on its own behalf, as referred to under Article 1(9)(d) and Article 2(4)(b) AIFMD II , is the AIFM or UCITS management company exempted from the requirements regarding marketing communications in Article 4 Regulation (EU) 2019/1156 on facilitating cross-border distribution of collective investment undertakings (the “CBDF Regulation”)?

It follows from Article 1(9)(d) and Article 2(4)(b) AIFMD II that where the marketing function of an AIFM or UCITS management company is performed by one or several distributors, which are acting on their own behalf, such function shall not be considered to be a delegation subject to the requirements set out in those Articles. In which cases is a distributor considered to be acting on its own behalf?
In cases where a distributor of an investment fund manager is acting on its own behalf, as referred to under Article 1(9)(d) and Article 2(4)(b) AIFMD II, the AIFM or UCITS management company is exempted from applying the provisions set out in Article 20 AIFMD and Article 13 UCITS Directive. In such cases, is the AIFM or UCITS management company required to monitor the distributor? What is the approach for insurance-based investment products marketed in accordance with Directive (EU) 2016/97? What is the approach for distributors located in a third country marketing UCITS or AIFs in the EU?

1. Member State incorporated exemptions in accordance with Article 3(2) item (b) of the Prospectus Regulation. Should a rule, incorporated by a Member State in accordance with Article 3(2) item (b) of the Prospectus Regulation, granting an exemption from the prospectus obligation be interpreted so that the “total consideration” of an offer of warrants only includes the consideration paid in conjunction with the initial offer, and not the strike price of the underlying securities?;

2. Offers of warrants as a part of units. How should the phrase “total consideration” be interpreted in relation to offers of units consisting of shares (offered against consideration) and warrants (offered free of charge)? Should the “total consideration” only include the consideration for the shares and thus exclude the strike price of the underlying securities?; and

3. The warrants’ exercise period. Does the date of the occurrence of the warrants’ exercise period, in relation to the date of the initial offer, affect this interpretation and how the calculation of the “total consideration” is to be conducted? Specifically, does it have an impact on how the calculation is to be conducted if the exercise period occurs within the 12-month period? Is there any difference in how you should perform the calculation if the exercise period occurs within either 3, 6, 9 or 12 months from the date of the initial offer? Does it make any difference whether the warrants are offered in the form of a unit?